Another New Year brings a host of new laws going into effect. Several of them affect criminal law or are closely related to it.

Now, registered sex offenders who fail to show up to get hooked up to GPS monitoring or who tamper with the device face a mandatory 180 days in jail. The real question is why is this only happening now?

There is a new law meant to even out the discrepancy between punishments between crack cases versus powder cocaine cases. Previously, people convicted of possessing crack for sale faced three to five years in custody. Now, people convicted of possessing crack for sale face the same punishment of two to four years as the people convicted of possessing powder cocaine for sale.

The fine for using a fake badge to impersonate a police officer has been doubled from $1000 to $2000.

A good change also is coming in juvenile cases. It used to be that a person convicted as a juvenile for a crime had to petition the court to seal their records. Now, if they did everything they were ordered to do by the court, their record will be sealed automatically.

In response to the shooting near UC Santa Barbara last year, police or family members who think someone is dangerous can seek a restraining order to prevent the person from purchasing a handgun for 21 days.

During the 1980’s and 1990’s, it seemed like every year saw new laws go into effect that was only concerned with being, “tough on crime.” That meant longer and longer sentences, longer mandatory sentences and broadening of what was a crime. Over the last several years, that trend seems to have swung the other direction, driven by economic costs of incarceration and the realization that just throwing people in jail and throwing away the key is not the most effective or efficient way to deal with offenders. The best examples are Proposition 47 which went into effect in November and the retooling of out Three Strikes Law that voters approved in 2012.

Every year during the Holiday Season, police departments have DUI checkpoints popping up all over the place. They are most common in Downtown San Diego, near Ocean Beach or Pacific Beach and other areas with a high concentration of bars and restaurants.

This year there may be even more than normal. The reason? More money to fund them. The not so well kept secret about DUI checkpoints is that they don’t really work. It has been shown time after time, if you took the same number of police officers for the same amount of time from a DUI checkpoint and put them out on patrol, they would catch more drunk drivers then they ever will at the checkpoint. This is so well known, even appellate courts have acknowledged it. I have even gotten police to admit it in court under oath.

So, if they would actually catch more drunk drivers on patrol than at the DUI checkpoints, why do they do checkpoints? The primary answer is money. Almost all the checkpoints are funded bygrants from Federal and State governments and other sources. So, the police get a grant and then they get to make a bunch of overtime pay which does not come out of their department’s budget. This year, with both the State and Federal budgets offering more grants for DUI checkpoints, and police always happy to pad their paychecks, even if it isn’t for a particularly efficient reason, there will be more checkpoints.

The other reason police like to do the checkpoints is public relations. They love to have the news cameras and other press advertise that they are trying to catch drunk drivers. They leave out the part about it not being an effective way to do it or that they are cashing in.

So, what do you do if you realize you are coming up to one and you had something to drink?

If you can safely turn to avoid it, go ahead. Understand, they probably have other officers around looking for people doing exactly that. So, drive carefully and do not violate any vehicle code sections that will justify the officers pulling you over.

If you are pulled over after avoiding a DUI checkpoint, ask the officer if he or she pulled you over because you didn’t go through the checkpoint. They are not allowed to pull you over just because you didn’t go through the DUI checkpoint.

If you get on the freeway to avoid the checkpoint, don’t get off at the next exit. Same story, there’ll be a cop waiting there to try and catch people avoiding the checkpoint. While the Constitution says you are innocent until proven guilty, that is not how cops think.

If you are going to have to go through the checkpoint, immediately roll down your windows. Let the car air out before you talk with the police officer. This is especially true if you have passengers who also have been drinking. They are looking for the odor of alcohol.

Get your driver’s license out before you get to the head of the line and have it ready to give to the cop. They are trained to note if you have any problem getting it out.

They are going to ask you if you have been drinking. If you had something to drink, do not lie and say you haven’t. If they smell the alcohol on your breath you’ll be ordered out of the vehicle for field sobriety tests. Explain you had that glass of wine with dinner.

Be polite. Don’t complain or ask the officer how much they are making in overtime. If you have passengers, tell them to just be quiet.

As you are driving through the checkpoint, take note of how it is set up. How long were you in line? Were there signs saying it was a DUI checkpoint? Were you informed it was a DUI checkpoint when they stopped you? Was there an opportunity to turn and avoid the checkpoint or was it essentially a trap? If you have passengers, have them look around, too.

Happy Holidays and remember the best way not to have a problem at a DUI checkpoint is to not to drink and drive.

In the news today were the stories of Michael Phelps and State Senator Ben Hueso both pleading guilty to a DUI’s. Phelps pled guilty in his home State of Maryland and Hueso up in Sacramento. It seems like we hear about celebrities getting arrested for DUI all the time. Whether sports figures, politicians, actors and actresses (Lindsey Lohan), music artists (Justin Beiber, although artist is generous) or other famous people with no particular talent other than being famous (Paris Hilton), it seems like we are always hearing about somebody famous getting popped for a DUI. Why does this happen?

DUI is one of the most common crimes we have. The reason celebrities are so often caught for DUI is quite simple – they are human. DUI’s happen to all types of people, rich and poor, well educated and uneducated, professionals and laborers, doctors, lawyers, judges, all races, sexes and sexual orientations, famous and common schmos alike.

The reason it is so common is because of the nature of alcohol. One of the first things that happens when we drink alcohol is that it affects your judgment. It eases up on your inhibitions. Hell, that is one of the main reasons people drink to begin with. And, as we drink, the BAC goes up and our judgment goes down. Eventually, those two lines pass each other and all bets are off. This is not an excuse, but, an explanation.

Very few people actually set out planning to drink more than they know they should and then drive home. They have a drink, then another and eventually, their judgment is impaired to the point where they think they are fine, but, in fact, they shouldn’t be driving.

One factor in that is the Mallenby Effect. We tend to feel the effects of alcohol more when our BAC is going up versus when it is coming down. A lot of times, people try and do the responsible thing. They stop drinking well before they are going to drive. They wait and maybe drink water, soda or coffee. Eventually they feel fine and get behind thewheel. The problem is, while they feel fine, their BAC is as high as it was earlier when they felt tipsy.

I once was in court when a judge at a DUI sentencing hearing told the prosecutor, “Counsel, we’ve all done it. It’s just that some of us haven’t been caught.” At first, I was shocked a judge would basically admit he’d driven after drinking more than he should have. But, when you think about it, he’s really not far off. If you drink alcohol and you drive, chances are you probably drove when you shouldn’t have. Sometimes, even if you are not at the legal limit, you still may be impaired for the purposes of driving. Here in San Diego County, the “experts” for the prosecutors will testify everyone is too impaired to be driving at 0.05%. While that is a gross overstatement and generalization, it is possible that your mental faculties can be impaired too much to drive below the legal limit. That’s why we have two laws, DUI (Vehicle Code section 23152(a)) and Driving with a BAC of 0.08% or more (Vehicle Code section 23152(b)).

A couple of months ago, there was an article in the Union-Tribune about the City of San Diego’s efforts to close down illegal pot dispensaries. Among other things, it explained how even after officials know about the pot dispensary, they then have to go through a lengthy process of determining who is running it, who owns the building, and if it is two different individuals, the process is even more difficult.

What does that mean? Taxpayer money and resources being spent on investigations and then seeking court orders. Almost none of that is recovered through fines as the people involved are not usually particularly responsible citizens.

Now, City Council Member Ed Harris, is pushing for faster closing of the illegal dispensaries. Authorities are periodically updating on where all the illegal pot dispensaries are located and how far through the process of trying to close them.

What does this mean? It means that even more taxpayer money and resources being spent to try and close these illegal pot dispensaries. And, frankly, most of it is a waste. As the article points out, the people working to close the dispensaries acknowledge that when a dispensary is closed, the person running it usually just quickly moves to another location and sets up shop there.

It would be nice to stop wasting time and money in a nearly fruitless endeavor that only makes the morality police happy.

Why not solve the problem? How? Look to history.

During Prohibition when alcohol was illegal, speak easies and other illegal drinking clubs flourished. Likewise, illegal smuggling boomed. Why? Because alcohol was illegal, the value of it went through the roof, so it was incredibly profitable and worth the risk to criminals.

When prohibition ended, the illegal production, smuggling and sales of alcohol shrank away to nearly nothing. Enforcement costs shrunk as well and money started flowing back into government coffers from the taxes paid on legal alcohol sales.

Would our local politicians please pull the heads from the proverbial orifices and use some common sense. The City is making it as hard as possible if not completely impossible for legal pot dispensaries to get permits and operate legally. Let them set up widely, and the illegal pot dispensaries will shrivel away because they will not have a monopoly on the business and won’t be as profitable. Legal pot dispensaries will be far less likely to sell to people who they shouldn’t, in particular minors, because they have to protect their permits. We can collect taxes on the sales and reverse the practice of wasting money trying to stop something we cannot stop and instead bring in revenue for the City. It won’t hurt to take away money from the Mexican Cartels either. Government estimates project that nearly half their profits are from smuggling marijuana into the United States.

For all the ‘community leaders” who keep saying they don’t want the dispensaries in their neighborhoods, you need to realize they already are there. You will be better off when they are legal ones and run above board rather than illegal pot dispensaries or the local dealer. If you think throwing up roadblocks to legal pot dispensaries will keep weed out of your neighborhood, you are simply ill-informed or stupid. It already is and it ain’t going.

The short answer is it should be a flat fee that includes trial if necessary. The average cost in San Diego, Chula Vista, El Cajon, or Vista Court should be anywhere from about $9,500 on the high end, to about $2,000 on the low end. Let me further preface that short answer by saying that I am talking about a lawyer with at least 10 years of experience in State DUI cases.

It is rare that our firm, San Diego Defenders, will quote a fee “up to trial” and “there is an additional fee if we go to trial.” Other lawyers will argue that most case don’t go to trial, and they don’t. But if there is a good trial issue, and the prosecutor knows that your attorney does not go to trial unless an additional fee is paid by the client, the lawyer generally will not get what he or she is trying to get for their client.

Because the Deputy District Attorney or Deputy City Attorney will know that most people will not pay the additional fee and that particular lawyer never goes to trial or files a motion, such as a motion to suppress evidence that could win a case.

For that reason, the California State Bar requires that a lawyer state the fee in the agreement is a flat fee that covers everything through trial. Not “up to trial” but a flat fee that includes motions to suppress and trial if it is necessary. That means it will help you, the client. And more and more, it is so important to try everything you can to keep your record clean especially if you are trying to get a job.

As for the range in fees from $9,500 to $2,000, it all comes down to your lawyers experience in determining how important keeping your record clean and how complicated your case may be in the particular court your case is in. Other factors include whether it will include the DMV hearing.

Perhaps the biggest factor is whether the your case will be handled by a lawyer in the law office you are negotiating with at the time. It is important to know that many “law firm websites” take calls with “case managers” who will give the case to the lawyer that will take the least. This happens a lot with the law firms that are out of county and “refer” the case to another lawyer in your county that may be practicing out of his or her trunk. Unfortunately, if you do not figure that out before you retain the firm, you will not find out until you actually try to contact your lawyer and it is hard to reach them.

So start with this easy to remember step when choosing a DUI lawyer. Find out the name of the supervising attorney

DUI Lawyers Cost

of the law firm you are talking to. If the person taking actual information about your case cannot tell you who that is – you are talking to a salesman with a nice website. The California State Bar requires that websites list who the supervising attorney is so that you know who is responsible for your case. If you find out who the supervising attorney is, get his or her full name and go to the California State Bar Attorney Search link and type in the name. That will tell you the following:

1. When they were admitted to the Bar (how long they have had a license to practice).
2. What is the address of their office. If it is not in your county, then expect to have a “contract lawyer” handling your case for a fraction of what you are paying.
3. Whether the attorney has had any formal complaints through the State Bar. Although, if you take the time to read the reviews of the particular lawyer, or law firm on Google reviews, Yelp, AVVO, Linkedin and various others, it will also help you to know the lawyer’s reputation.

A side note is that you should ask, and it should be on your retainer agreement, WHO IS YOUR ACTUAL ATTORNEY. Demand the name of who will be representing you in one of the most important events in your life.

So that is as short and concise as I can be with that question, please read our other blogs or watch our brief videos at www.DUIminute.com

Senator Hueso is Wrong to Declare He Will Pursue His Innocence in DUI Arrest!

Okay, we all know politicians generally get elected – even to the California State Senate, because the politician can get the union bosses to order their sheep err I mean “members” to vote them in. I put in my brief commentary on politicians even though I, Daniel Smith, Esq. am running for Chula Vista City Council 2014. And to defend the union members, I have written on my political blog, that I believe union members are beginning to see the light and understand that union bosses generally have never worked in their field. Never, got their hands dirty, except to receive bribes for brain-washing their union members. I believe union members are sick and tired of the corruption of their union bosses that ultimately are thinking about their own wealth and not necessarily the benefit of the members.

Back to Ben Hueso (D) and all the other knuckleheads politicians that get arrested for DUI and then decide to announce to the press I am going to “pursue my innocence” reported the Union Tribune. Brilliant. Dude, we live in the United States, not Mexico, and we ARE PRESUMED INNOCENT! I can say this with a reference to Mexico because, (1) I am a Latino (mother’s side), (2) my children with my current first and only wife are 1/2 Mexican and (3) my Chula Vista office is only 8 miles from the Mexico. I am allowed to make fun of politicians who have generally never created a job, much less had a real job. And are running our lives passing new laws, spending our money via new unaccountable agencies and keeping college for our kids unaffordable (assuming we are citizens of the U.S. and working hard to pay our taxes). So yes, I will make fun of the idiots and I will be accountable when I am elected. Unions are afraid of me, so make a donation atwww.chula4smith.comand I will break the mold.

I think that we all used to presume politicians were smart. I don’t want to be hard on Sen. Hueso, but he demonstrates just how little many politicians (that you and I elect) know about our forefathers’ founding principles set forth in the United States Constitution. First of all, it is the prosecutor’s burden to prove that Hueso is guilty beyond a reasonable doubt. In Mexico, you are presumed guilty without a speedy trial and that is why Sgt. Andrew Tahmooressi is still in a Mexican jail after he briefly crossed the border and was not smart in trying to explain he had guns and wanted to turn around. (It does not help to “explain yourself in any country!”)

Sen. Hueso may believe California is a different country. But it is not. He is one of the leaders of perhaps the most powerful state in the union. VOSD quoted him ” I have a business background, I have a planning background, I have an economic development background” What business was that? Running a frat house at SDSU does not count or qualify anyone. I have no idea if he ran a fraternity house or when he had time to have a real job or create jobs, so let’s get back to his case.

Senator Hueso was driving the wrong way down a one-way street in Sacramento at 3:45 AM says the Sacramento Bee. That was after Assemblywomen Lorena Gonzalez tweeted a picture of Sen. Hueso holding a drink with his shirt half un-tucked. Presumably late at night, her tweet said “… Loving my Latino Caucus Boys”. The second lesson to be learned from this arrest of Ben Hueso might be to avoid having your picture with evidence of you drinking within three hours of driving blasted across the universe via social media.

Did I say that we elect these geniuses? With friends like Assemblywoman Gonzalez, who needs enemies? She removed it from her twitter account. Which leads to a third lesson that can be learned here. Once on the internet, it does not go away – forever – always – in perpetuity.” I have had many a gang case in which the prosecution has handed me screen shots of social media showing my client with guns, drugs and flashing gang signs. My clients usually tell me that they left that part of the story out of our conversation because it was “deleted and shut down”. Oh well.

Senator Hueso might be better off calling us at San Diego Defenders next time to make any statements on his behalf. I will do it free of charge like Gloria Allred does on a regular basis. Free TV advertising is a bargain at twice the price!

But all joking aside, let’s all remember that we live in the United States of America where laws are presumably in place to protect the freedoms that we already have. Unalienable rights. Laws are NOT made to create rights, as I recently read in “The Law” a short but powerful book written by the French economist, statesman and author, Frederic Bastiat. In 1848, he examined the struggle many countries had in deciding between economic systems of communism, socialism or capitalism.

Laws are made in defense of our life, liberty and property says Bastiat. I believe that is what our forefathers meant when it was declared that we had an unalienable right to life, liberty and the pursuit of happiness. The laws that followed were not made to pursue innocence because it is something that we possess. If you call our office, we will be talking about the laws, such as the right to be free from unreasonable searches and seizures, which presumes our innocence. Let’s start there.

Earlier this week, an article appeared in the Union-Tribune about our District Attorney’s office and a list they keep of police officers they do not trust. It was referred to as the Brady List. Brady was the name of a Supreme Court case years ago that said prosecutors have to provide exculpatory information to defendants for their trials to be Constitutionally fair. Included in this category is information about witnesses, including any law enforcement personnel, that tends to show they may have had problems in the past or have been dishonest. The idea being, if they screwed around before, they might be doing the same bad things in the current case.

I found the article about the Brady List disturbing for several reasons. First, it was glaringly too short. While no specific numbers were provided, it appears the list is between 5 and 10 names long. There is no way only 10 police officers, deputies, highway patrol officers, Federal and other law enforcement in San Diego County. There have been more than that indicted in the last couple years or so. Speaking as an attorney with 18 years of experience in criminal law, most cops are honest and trustworthy. But, there are a hell of a lot more than 10 dishonest ones that have been shown to be dishonest.

Second, apparently the prosecutors sometimes take cops names off the list. That makes no sense. If they have been so egregious that they earned their way onto the list, what could possibly change that? If I had to make an educated guess, it happens when a long period of time has passed since whatever the cop did that was wrong. That shouldn’t be up to the prosecutors to decide. Even if it happened a long time ago, it should still be disclosed to the defense and let a judge decide if it can be used in court or not. I am aware of a police officer who was accused by a prosecutor of falsifying arrest reports and then lying about the incidents in court testimony nearly 20 years ago. Guess what, I proved he lied in a report and in court just a couple years ago. Once on the list, you should stay there.

Third and perhaps most scary, what are these people doing still carting a gun and a badge? If you do something bad enough that the prosecutors are willing to say you shouldn’t be trusted anymore, then you shouldn’t be a cop anymore. Aside from the absurdity of us taxpayers still paying the bad cops, they are in a position of authority that can be far too easily abused and exploited. They should be fired. Wal-Mart needs security guards, too.

Your arraignment is the first court appearance you will have in your DUI criminal proceedings. The arraignment provides you with your first opportunity to plead guilty, not guilty, or “no contest” to your California DUI charges. You may qualify for a public defender, in which case, you will be counseled prior to pleading guilty, if that is what you choose to do. Consequently, you have the opportunity to be sentenced immediately. However, if you have a viable defense, you may not see it in the initial reports and that is why many people choose to hire private counsel, especially if the law firm offers a payment plan, such as San Diego Defenders. Many times, people call a law firm and express how difficult it is to get a job with a DUI on their record. “I should have stopped to think of the consequences” is what is said. There are four divisions of the Superior Court in San Diego County. San Diego Central (Downtown San Diego), South Bay Division (Chula Vista), East County (El Cajon), and North County Division (Vista). This article links you with the map to each location. If you plead not guilty a future date (Readiness Conference) will be set for 4-6 weeks out. It will be noted if you have an attorney and if you do not you may be assigned a Public Defender. If you hire a private attorney, in between your Arraignment and Readiness you or your San Diego DUI lawyer will be able review the prosecution’s evidence (discovery). This includes a copy of the police report, any recordings visual or audio and access to the maintenance records of the testing instrument(s) that were used. If you or a loved one has been charged with a DUI or related crimes please contact our office at (619)233-6900 for a free and confidential consultation with an experienced attorney.

Strange to hear from a criminal defense lawyer. But how do you defend what little constitutional rights an offender has? Especially when the State decides who should be entitled to early release to alleviate over crowed jails because the Correctional Officers Union negotiated a deal that private prisons may not house those sentenced to State prison as they do in other states!

I often wonder if those union bosses ever think outside of greed and profit. The negotiated deal, I believe to be true, benefits the California Correctional Officers and their jobs and overtime etc.

Great, but nobody wants new prisons built, hence the federal judge rules that there is over-crowding.
Then some unknown “correction specialist” decides who to release in the community early. Is it the marijuana dealer or the non-violent offender with serious mental issues that cannot get help when released?

So far, the numbers do not look good. Check out San Diego Union’s story in July 23, 2014 paper. 6,200 men and women have been released on the streets since 2011 and about 2,290 now active as “supervised”. How is that going?

40 of those non-violent former prison inmates previously classified as non-violent have been charge with murder or attempted murder since 2011. What’s that? Three years or so?

Maybe that is not a bad number. But consider this. According to a San Diego County Senior Probation Officer, there is only one office that is processing the early release SB-109 offenders. It is on Chula Vista’s main street – Third Avenue and conveniently located next to a Bar and down the street from the newly remodeled Veteran’s Memorial Park. Genius. Why not next to a grade school.

How is a defense lawyer, and primarily a public defender who will get the majority of the cases, going to explain that his or her client was set up for failure.

Doesn’t it make sense to locate such an office in an industrial area, like the location of the half-way house on Boston Ave. close to NAASCO where they can get work when released? How about locating some professionals close by to get them the treatment they need?

Mack Jenkins, the County’s chief probation officer noted in his December 2013 report to County Supervisor’s that the re-alignment and mandatory supervised former inmates “are at a significantly higher risk to re-offend than the traditional probationer at 28%”. That annual report is now hard to locate on San Diego Probation’s website now. Well it don’t take a weatherman to know which way the wind blows.

And for now, Chula Vista and its City Council is ignoring the problem and no mention has been made of the probation office and its precarious location. Was rent cheaper on Chula Vista’s “Main Street”? No one is commenting. Maybe it will just go away and Third Ave. will be a wonderful place to bring your family and grandkids. Just dodge the homeless and disenfranchised early parolees. They are the non-violent felons, but where is the plan to get them back into becoming productive members of society.

You see, most defense attorneys prefer referrals rather than repeat customers. I think most defense lawyers represent the constitutional rights that all citizens of this great country should have. That is what makes our country so different. However, I also submit to you that defense attorneys want to make a difference in their client’s life. We want a fair outcome and for our clients to become productive members of society. Regardless of how we are treated for what we represent. The State of California has good intentions, but you have to set yourself up to succeed is what my father, a brilliant jurist and lawyer always said. It is hard to sugar coat this mess.

Whether on a vacation from Arizona or a local from Southern California, you may know someone arrested for DUI in San Diego. July 4th is one of those weekends that you or someone you know may make the mistake per VC 23152 (A) or VC 23152(B) also known as a drunk driving ticket. As a lawyer defending DUI cases for 25 years, one of the biggest misconceptions for visitors is that if they return to their home state, like Arizona, the case will go away. Wrong. When arrested for DUI you are given a PINK temporary license to drive in California for 30 days and 10 days to request an Admin Per Se Hearing with the DMV. My advice is to set the hearing or call a law firm that focuses on DUI cases to set the hearing for you. The reason is that if your driving privileges are suspended in California, then Arizona will find out through the Interstate Compact. Then Arizona will suspend your license in Arizona until you take care of the “DUI problem” in California. The good news is that if you call a firm like San Diego Defenders, you will speak to Daniel Smith – the supervising attorney” and he will tell you that we can make the DMV hearing for you without your presence AND also represent you in court without you having to return to California as long as it is a misdemeanor DUI. Our clients are everyday hard working people and appreciate that San Diego Defenders has payment plans and we can set up your representation on the telephone and the internet email. Daniel Smith is an Arizona native and used to come to San Diego to vacation as a young man. He understands. Daniel Smith and Jon Pettis have the best success rate in getting charges dismissed and reduced in San Diego County. Call us 24 hours a day, 7 days a week at (619) 258-8888 to talk to Daniel Smith (a former Zonie) and he will give you the peace of mind you need and help get you started in getting your life back to normal. Don’t wait, you have only 10 days to save your license – in both states!